Cease and Desist letter from Amazon / dpreview

My recent post about the Canon EOS 7D caused a bit of controversy on the Internet and it is not surprising considering that in that post I’m essentially showing that the EOS 7D, Canon’s supposedly latest and greatest APS-C sensor camera body, is offering worse image quality compared to the two year older model, the EOS 40D. This was my conclusion based on my discussion of dpreview’s review of the EOS 7D and some of their test data.

After posting my article about the EOS 7D, I notified people of the post and one of those people was Philip Askey, the guy who started dpreview before Amazon bought them some time ago. Shortly after sending my email to Askey, he replied demanding that I take down the sample images from dpreview which I included in my post about the 7D. You can see the email conversation that followed below:

Thank you for reading. I was hoping you guys would mention how the noise in 7D images was still worse compared to the 40D, like you did when you reviewed the 50D.

Also I use some of the crops to discuss the result of your published reviews and show how from your own reviews and samples, the 7D performs worse than the 40D, while also mentioning how you guys failed to mention in your own review that the 7D performs worse at low ISO compared to the D300s, as you can clearly see.
My use falls under fair use and that’s why i did not ask permission. But let me know if you think otherwise.

After my last email to Askey above, I didn’t hear from him again. However, after this email exchange I started contacting a few people to ask them for their opinion about my use of the images in my post. I was sure my use of the images fell under “fair use” but I still wanted to hear the opinion of others just to be absolutely certain that I wasn’t infringing on dpreview’s rights. As a photographer myself, I too would love to be able to protect my work, so I take such matters very serious. One of the people I contacted was Dan Heller, well known in the photography business community online, he has written about many similar topics in the past. We started a very insightful email discussion on the subject, and Dan basically confirmed my “fair use” argument.

The public’s right to make fair use of copyrighted works is a long-established and integral part of US copyright law. Courts have used fair use as the means of balancing the competing principles underlying copyright law since 1841. Fair use also reconciles a tension that would otherwise exist between copyright law and the First Amendment’s guarantee of freedom of expression. The Supreme Court has described fair use as “the guarantee of breathing space for new expression within the confines of Copyright law”.

3. How Do You Know If It’s Fair Use?
There are no clear-cut rules for deciding what’s fair use and there are no “automatic” classes of fair uses. Fair use is decided by a judge, on a case by case basis, after balancing the four factors listed in section 107 of the Copyright statute. The factors to be considered include:

a. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes — Courts are more likely to find fair use where the use is for noncommercial purposes.b. The nature of the copyrighted work — A particular use is more likely to be fair where the copied work is factual rather than creative.c. The amount and substantiality of the portion used in relation to the copyrighted work as a whole — A court will balance this factor toward a finding of fair use where the amount taken is small or insignificant in proportion to the overall work.d. The effect of the use upon the potential market for or value of the copyrighted work — If the court finds the newly created work is not a substitute product for the copyrighted work, it will be more likely to weigh this factor in favor of fair use.

4. What’s been recognized as fair use?Courts have previously found that a use was fair where the use of the copyrighted work was socially beneficial. In particular, U.S. courts have recognized the following fair uses: criticism, comment, news reporting, teaching, scholarship, research and parodies.

Based on the criteria in point 3 above, there’s absolutely nothing wrong with my use of some of dpreview’s images as I did in my post about the EOS 7D. Especially considering the fact that I was mainly criticizing dpreview’s review of the 7D (they worded the review in such a way to make the 7D look positive at times) and using their own data to show what I feel that they failed to mention about the 7D (that it offers worse image quality compared to the Nikon D300s from ISO 100 – 1600 and worse compared to the EOS 40D at all ISOs).

But the next day, after I sent my last reply to Askey, I get the following email from a lawyer at Amazon:

I am Associate General Counsel for Litigation and Regulatory Matters for Amazon.com, which owns dpreview.com. It has recently come to our attention that you are using dpreview.com’s copyrighted material in your blog posts, specifically http://blog.kareldonk.com/canon-eos-7d-review-noisier-than-40d/, in connection with Karel Donk In My Opinion. Your use of this content is unauthorized by dpreview.com and infringes dpreview.com’s intellectual property rights. The purpose of this e-mail is to demand that you immediately cease using or otherwise infringing dpreview.com’s copyrighted content and related rights. dpreview.com would prefer to resolve this matter amicably with your cooperation. However, dpreview.com needs your written assurance that you are willing to immediately cease and desist from any and all use of dpreview.com’s intellectual property, including any images and content from the dpreview.com web site.
We look forward to hearing from you, and ask for your written response by Friday, November 13, 2009 to indicate your position on this matter. If we do not hear from you by this date, we will take those further steps that we believe are necessary to protect our rights.
Thank you for your prompt attention to this matter.

Kathryn Sheehan

As you can see, they wanted me to assure “that you are willing to immediately cease and desist from any and all use of dpreview.com’s intellectual property, including any images and content from the dpreview.com web site.” This would mean that I could not even quote some of their review text so that I could comment on it or criticize it. And of course this would severely limit me in exercising my right to free speech, so I couldn’t possibly agree with this. In addition, there was nothing wrong with my use of the dpreview images in the first place. So I replied as follows:

In my blog post, which you mention in your email, I am discussing, among other things, the review done by DPReview of the EOS 7D. I quote part of their findings from the review, and offer my own comments and criticism on their review. I have included browser screenshots of their review images (not the original images) from the review which were relevant to my comments, to support my comments and criticism to show that THEIR OWN images show things that I feel they failed to mention in their review.

I believe that this is “fair use” of the material. I would not be able to discuss their review and make my points if I could not quote some of their text and show SCREENSHOTS of SOME of their images, and my comments and criticism would not be possible.

If you think this is not fair use, please let me know and also let me know why you think it is not, so I can consider taking the images down if I see that I am in fact infringing on dpreview.com’s rights.

Regards,

I have yet to receive a response from them on my last email above. Dan Heller later told me that he thought I used way too many words in my reply, and that an email asking the following would have been enough:

Explain to me why you feel my use of the images doesn’t meet the four criteria established by the courts in fair use assessments.

And I couldn’t agree more. Short, powerful and to the point.

I thought this information might be useful to many people out there, as the use of copyrighted images on blogs is an often discussed topic on the Internet, and I think it’s going to be discussed a lot more often in the future as more people discover the Internet and start blogging. Certain use of copyrighted images on your blog is certainly permitted as long as you keep the “fair use” guidelines in mind. But I’ll leave it to experts like Dan Heller to talk about this subject more in-dept.

Comments

I think it’s also important to mention that this is not the first time that I’m having issues with dpreview. A while ago I got banned from the forums on dpreview for expressing my opinion about Canon products. And in fact, this happens quite often as you will find out if you do a bit of research on the Internet. If you’ve also been banned or know of people being banned on dpreview.com, leave a comment on this post below.

Not only are people getting banned for expressing their opinion on dpreview.com, but entire threads with discussions containing certain information are often also deleted from their forums. When I got banned, the threads where I was discussing issues with Canon (equipment) and expressing my criticism got deleted as well. If you want some examples of deleted threads, just check out these links where there’s some discussion about deleted threads with saved copies so you can see what was being discussed: Link 1, Link 2.

What this looks like to me is editorial bias. It almost looks like criticism about Canon (products) isn’t tolerated at dpreview (and perhaps other manufacturers too). One commenter on my blog had the following to say:

It seems that DPReview either “recommends” or “highly recommends” any camera reviewed on its website. There has been debate about the objectivity of DPR and other review websites, especially when they get “previews” and first dibs on cameras, all subject to non disclosure agreements/NDA’s (e.g., Leica M8 and not noticing the infra-red/magenta issue). IIRC, DPR recently complained that various rumor websites were stealing the thunder of new camera releases (and affecting DPR traffic), while DPR was barred due to NDAs. Recently, DPR has made some wonderful declarations about Leica’s M9 (IIRC, DPR was invited to preview the camera in Germany) and noise improvement. Yet looking at Preview sample pic #5 (ceiling at ASA 1600) shows substantial noise. Certainly does not create any confidence. You really can’t bite the hand that feeds you.

Karel, I’m not surprised to hear that dpreview banned you for speaking the truth. I have also spoken out about Canon’s horrible quality control and I was banned too. The gangs of fanboys at dpreview are allowed to attack and insult anyone who reports any problems with Canon gear, so of course many people are afraid to report problems.

I have started a blog (http://dpreviewsucks.blogspot.com/) to expose some of the things going on at dpreview and Canon and at least I won’t be silenced there by the fanboys at dpreview. When those fanboys don’t like something that someone says about Canon they complain to dpreview and often get the person banned. Dpreview is complicit because they have a monetary interest in keeping interest high in camera gear, and especially the gear from Canon and Nikon since they’re the two biggest sellers and are virtually certainly the companies that pay the most for advertising on dpreview. Dpreview wants their free loaner gear too.

I’m glad you have the guts to speak up about the awful QC at Canon. The problems are way bigger than some people want to believe. How Canon even stays in business is a mystery to me.

I think that everyone should be allowed to give their opinion on things, even if you don’t agree with them. If you have a look at the comments on some of the posts here on my blog, especially the ones where I discuss Canon (products), you’ll see very harsh and perhaps even insulting comments being made towards me and my opinions. Do I delete them? No. I allow all comments and opinions. Other readers should be able to see those comments too and then make up their own minds.

Karel, it doesn’t surprise me that Amazon is trying to push you around. I’m glad to see that you’re standing up to them. It looks like Phil Askey doesn’t want his reviews reviewed! The bias and falsehoods in the review of the 7D on dpreview are really obvious to anyone with a clue. I’m sure that the big ad campaign on dpreview by Canon, at the time of the 7D review’s publication, has a LOT to do with the way the review was worded. Money talks. The 7D may be the most overrated, over-hyped camera Canon has ever produced.

I’m sorry, but taking something that isn’t yours is stealing, plain and simple. Also, are those links to services that you provide and get paid for at the top of your blog? That means this blog can be considered a commercial effort since it’s readers may see your links, then buy and pay for your services. This clearly breaks the first rule of fair use.

According to Wikipedia:
Fanboy is a term originating in the United States…, used to describe a male who is highly devoted and biased in opinion towards a single subject or hobby within a given field. The earliest known recorded use is dated 1919.
Fanboy-ism is often prevalent in a field of products, brands or universe of characters where very few competitors (or enemies in fiction, such as comics) exist.

The shoe seems to fit perfectly in your attitude toward anything Canon. So apparently you shoot Nikon? So what??? What brand soap do you use? Why not rant about that?

And I agree that your site is commercial in nature and you are simply trying to hide under a cloak of false journalism. Did you happen to mention to your legal friends that your site is selling services? It is obvious you aren’t quite sure what role you are actually playing: photographer, designer, programmer, journalist, fanboy. L

I’m just as passionate about both, make that all three sides of copyright, my own, Public Domain, and Fair Use. If you were reviewing a review, making critical commentary, and as much making criticism about the pictures, it’s a pretty clear call on Fair Use. It sounds like they’re trying to use intimidation. You can of course happily comply, simply changing your review to include links back to their pictures. Not a damn thing they could do about that. And as for the text, as long as you weren’t using substantial amounts of text, I think they’re just blowing smoke rings.

Btw, I spent a little time over at DPReview earlier this year while sidelined and recovering from an accident. I can say that I found the overall tenor in some of the forum discussions more aggressive or hostile than many other forums I’ve come across in my day.

“Also, are those links to services that you provide and get paid for at the top of your blog? That means this blog can be considered a commercial effort since it’s readers may see your links, then buy and pay for your services. This clearly breaks the first rule of fair use.”

Ha !

Perhaps you need to do some reading about Fair Use. Commercial benefit does not exclude Fair Use.

Purchased a new EOS 5D Mark II earlier this year thinking I was getting a great camera. Being a 35 year professional motorsports photog, boy was I disappointed! I couldn’t find a situation where the 5D functioned consistently. In fact after shooting several events manually, I found my “in-focus” hit ratio was actually higher! I’ve sold it recently but was wondering if you have problems with the 50D? My old EOS1D Mark II N’s are still my favorites.

Roz: The 50D has too much noise in images. Check my 7D review and search my blog for the 50D review.

I think right now our only hope is the 1D Mark 4. I think the 60D will have the same sensor from the 7D (= too much noise) and maybe we will get a better fullframe prosumer camera (3D) next year.

Before you go and buy the 1D Mark 4 wait at least 4 months to check what others are saying about it. From what I have seen of Canon in the last 3-4 years, they can’t be trusted much with new product releases.

Karel, you don’t have to copy images or content from dpreview.com or anybody else. You just need to *link* to the images. To demonstrate, I’ve written a post that illustrates how the 40D is better than all the latest DSLRs from Canon and Nikon:

That’s a nice post and nice comparison, similar to what I did here in my 7D-40D review.
Also I don’t think linking to an image would make you safe. There have been cases where it was seen as infringement because of republishing.
So better stick to fair use.

Thanks for the reply. Actually, i would like a camera that allows fast auto focusing even in low light, sharp images, .and somewhat decent fast action like sports if possible. How about some Nikon ones. I’ve always been impressed with some images that my friends have taken with Nikons. Any Nikon that you can mention that is comparable to 7D or better? Thanks again.

Well done for being consistent and defending your rights. This is a perfect example of why a free internet is troubling some corporate heads and the ways in which they try to manipulate the general public.
I got used to taking as gospel everything that dpreview said, forgetting that at the end of the day big money can end up corrupting good will. It’s only when I noticed at the bottom of the amazon page, links to various (assumingly independent) review sites that I started looking more into it and also found this article.

Don’t you love how Amazon thinks it can push people are just because they don’t want to hear bad publicity? In fact, in their Terms of Service, Amazon prohibits using their name if intended in a negative way. And this from a company that advertised and sold an Ebook Guide to Pedophilia. If and when there is a website offering to boycott Amazon, please let me know. Would like to volunteer for that one. RK

Can we reverse the trend of open forums being swallowed up by mega-corporations and media conglomerates? Many forums that I used to trust for unbiased opinions are now puppeteered. Karel way to stand your ground…anything come out of this C&D?

dpreview.com just sucks overall. It may have been good once, long, long ago. Now every review on that site is bought and paid for. And the forums are a joke.

I got permanently banned from there years ago for reasons I cannot even recall, though I think it has something to do with me taking to taks a gang of idiots who were posting a lot of non-sense.

I recently gave it another go. Been participating for about a week, sharing some of my photos, and commenting on some others, but it hasn’t gone so well. The photos I have shared were almost entirely ignored, no one comments unless it’s to say something stupid like “good job” or something nasty just for the heck of it, or worse “what camera did you use” as If that matters.

But today I was banned temporarily, for too much self promotion evidently. more likely some “moderator” just didn’t like me for some reason.

Hi jtimar84,
This is a notification that you have been temporarily banned from dpreview.com, details of the reason for this ban are shown below. You will not receive another notification when the ban has lapsed, it will simply expire after the period shown below. Ban period: 7 days

DPreview sucks indeed. It has become even worse in the last time. They hired a lot of staff but for what? The frequency of reviews posted is still very low. But they put a lot of effort in their website about mobile photography like on a crusade to persuade everyone that they should buy an expensive smartphone for taking pics because they have become so better blablabla. I once tested their high-praised Nokia Pureview 808 which really disappointed but has a general favorable review and they don´t stop with their praises like “smartphones are so much better than P&S and even better than some DSLRs” – I can´t take them serious anymore. They also post more previews than reviews which often never were finished. Sarcastic people already say the name should be read D-Preview.

I also got banned a while ago for just expressing my opinion that I don´t like the writing style of one of their new reviewers getting an arrogant message by one of their other reviewers who joined the team 3 years later than I registered in their forums. Doesn´t bother me anyway as most members who really were good for serious discussions left some time ago as the fanboys took more over and over.
Mostly not the old fanboys who simply accused one of being a troll or working for the competition but people who try to act smart and write long-winded posts how good their stuff is, posting some fair-weather pics from their garden or one of a “hot woman” as evidence and then concluding that everyone not sharing their opinion has no clue about photography.
The only usable thing of their reviews is the comparison tool but I ignore their text as they praise most cameras even if the comparison pic tells something different.

I rather read cameralabs.com, the editor Gordon Laing writes way better reviews and is much faster in completing them which puts DPreview with all their staff to shame as he runs his site as a single person.
And there are also other sites like photgraphyblog which are fare more informative and faster in putting up reviews than DPreview. For me it´s not longer a source to ask when I look for information about gear.

LOL…now shortly before Christmans they don´t write new reviews but sum up their old shit for “buying guides”. Another way to increase the number of articles but not writing something new. But seems it is important that more people buy at Amazon.
I don´t say buying guides based on old reviews are completely useless but then they should at least continue with new articles instead of summing up already written stuff and doing nothing else.
BTW Phil Askey left the site in 2010 giving the lead to Simon Joinson.
I have to say despite the emails above Phil was still one of the better reviewers but that the site went downhill already started during his time.

I got banned for “abuse” for commenting on somebody’s discussion that the dpreview reviews read more like adverts and how odd it was that no camera ever received less than 85% rating. I have a feeling the reviews are not genuine reviews but are adverts penned by Amazon who own dporeview. Needless to say, though I could rejoin under another name, I just don’t see the point.

I used to chat in their forums a lot for about a decade. Then after expressing opinions, which they didn’t like, a “moderator” banned me. That turned me off for about 6 months. Then I got back into it, and sure enough, an opinion that they didn’t like got me banned, again. I really didn’t think I was pushing things at all. It was all just normal talk about equipment, and lenses and whatnot. There were no insults. Just showing evidence how an expensive lens didn’t live up to its image. That was kind of it, what got me banned again. An anal moderator called Marti something got on my back, and got me banned. I lost interest in DPreview altogether. I ended up deleting all my photos and albums, and changed my profile to describe an explanation why I can’t be part of DPreview any longer, because of the abuse by moderators.
Surprisingly, a bunch of months went by, and then suddenly, in the email, poof, another 7 day ban. Why? I haven’t been at that site for months. I lost interest because of the abuse by moderators.
I’m sure they “deleted” my profile text. Not sure if I even care to check it out. I wish I could delete *ALL* messages I’ve posted over that decade.
It seems DPreview is manipulating the forums to act as advertisements for the products that the companies that feed their hands produce.
It means that if you have any criticism about a specific product, you’re immediately put under a loupe.
If I cared about all the fools left in the forums having their endless arguments about how lens X is good because they paid so much money for it, I’d still be worried. Right now, good for me, I haven’t given a crap for many months now.
DPreview *can* be good, but not with its idiotic sociopath managements and its willingness to assign superpowers to arbitrary moderators from random places, in essence giving nobodies a way to feed into their power orgasms.
For those reasons, I will never go back to DPreview, unless management changes.
Not holding my breath. Whatever, really.

Thanks for the tip about changing my profile text. I got a 14 day first ban when the conditions clearly state a first ban is normally seven days, for saying the following about a pre-review opinion piece on the Fuji GFX50:-

“Whatever.
How about an opinion piece after a full review and real world use.
This cart before the horse approach destroys DPR’s credibility.”

The reason for the ban:-
“Notes from the moderator: If you’re going to accuse us of misleading the public, please provide some factual evidence.”

Well the moderator can rest assured that if I ever accuse “us” of misleading the public I will provide some factual evidence but all I did was point out the error of their ways with regard to editorial policy.

Why so touchy and closed to advice you wonder. Sensitive or what.

No doubt when they discover this piece I will be banned for life. Do they really think I care.